This matter is before the Court on the motion to dismiss and/or for summary judgment [Docket Item 34] by State Defendants James DeMaio and Michael Williams ("Defendants"). The Court will construe the motion as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and not as a motion for summary judgment, because discovery was still pending and the case was in a very early stage of litigation at the time of the motion.*fn1 See Miller v. Beneficial Management Corp., 977 F.2d 834, 845 (3d Cir. 1992) (holding summary judgment on the merits was precluded by the incomplete state of discovery); Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984) (holding it error for the district court to grant summary judgment without a hearing while discovery requests regarding central issues of fact were still pending); Costlow v. United States, 552 F.2d 560, 564 (3d Cir. 1977) (holding that a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course). Indeed, there have been several discovery disputes in this case that arose after Defendants filed the motion to dismiss. Thus, a motion for summary judgment would have been premature when this motion was filed. For the reasons explained, the Court shall grant the motion to dismiss in part and deny it in part.

I. STANDARD

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts and must view all allegations in the Complaint in the light most favorable to the plaintiff. See id. at 236; Unger v. Nat'l Residents Matching Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991); Glenside West Corp. V. Exxon Co., U.S.A., 761 F.Supp. 1110, 1117 (D.N.J. 1991); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

In the Complaint, it is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. See Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977). When a motion to dismiss is before the court, the question for the court is not whether plaintiff will ultimately prevail; rather, it is whether she can prove any set of facts in support of her claims that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the Complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the non-movant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990).

II. FACTS

Plaintiff alleges that Defendants inflicted cruel and unusual punishment on him and discriminated against him based on his disability when he was an inmate at South Woods State Prison. Plaintiff has an amputated leg and wears a prosthesis. Plaintiff alleges generally that defendants, with awareness of his disability, purposely housed him on the second floor of the prison instead of the first, and on the top bunk instead of the bottom. He also alleges that prison officials ignored his requests for a more accessible cell and medical visits to obtain documentation showing his need for such an accommodation. The housing situation allegedly caused Plaintiff pain and deprived him of access to essential facilities, such as showers. Plaintiff asserts claims under the Eighth Amendment, the Americans with Disabilities Act ("ADA") and New Jersey tort law.

III. ANALYSIS

A. Motion to Dismiss ADA Claims against Individual Defendants

Defendants argue that the claims Plaintiff alleges under the Americans with Disabilities Act are not viable as to the individual employees of the prison, DeMaio and Williams. Plaintiff does not oppose this aspect of the motion. While Muhammad alleges certain facts that may tend to support a cognizable claim under the ADA, the Court agrees that his ADA claims against these individual defendants are not viable.

Title II of the ADA prohibits discrimination in services, programs, or activities of a "public entity" or "discrimination by any such entity." 42 U.S.C. § 12132. "Public entity" is defined in the statute as:

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or ...

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